A proceeding to terminate the parental rights (TPR) of one or both parents is initiated by preparing and filing a petition, summons and a notice. The petition is the document that identifies the people involved, including the child, and the grounds to terminate the right of one or both of the parents. Think of “grounds” as the reason for filing the petition. The summons and notice are the documents in which the parents and other parties are notified of the location, date and time of the hearing. It is important that the summons includes the potential consequences of failing to appear at the scheduled hearing. All parties must receive notice of those documents. The parents should be served in person at least seven days prior to the hearing. There are limited and specific circumstances under which other means of notifying the parties are acceptable, however.
The initial hearing on the petition must be held within 30 days after the petitioner had been filed. At the initial hearing the court will determine whether a party will consent to the termination. The court should also advise the parents of their right to have an attorney represent them. Similar to criminal cases, a parent who has been found indigent could be eligible for representation by the public defender. The court will also inform the parents of their right to a jury trial and a substitution of judge. If the petition is contested—meaning one or both of the parties disagree with the request to terminate parental rights—the court shall set a trial within 45 days of that hearing, unless the court finds “good cause” to extend the time limits to schedule a hearing.
The laws of civil procedures govern TPR proceedings, including the evidentiary phase of gathering discovery, conducting depositions and filing motions. The court will hear any timely filed motions prior to a trial. A TPR proceeding is broken into two phases: fact-finding and disposition. The fact-finding phase consists of a trial in which the fact-finder determines what the “facts” are and whether they meet the burden of proof to show the grounds as alleged in the petition exist. If there is a court trial, the judge presides over the trial and is the “fact finder”. If there is a jury trial, “fact finder” consists of a jury of either 12 or 6 people. At the trial phase the fact finder only determines whether there are facts showing grounds exist to prove the petition. The fact finder does not decide whether the parental rights should be terminated.
If following a trial, the fact finder determines that grounds exist to prove the petition, the case proceeds to a disposition hearing. At that hearing the judge determines whether it is in the child’s best interest that the parental rights of one or both of the parents be terminated. There are several factors that the court considers when making that decision. No one factor is given more weight than the others and the standard is the best interest of the child. The factors include:
- Likelihood of adoption after a TPR
- Age and health of the child at the time of disposition and at removal from home if applicable
- Whether the child has a substantial relationship with a parent or other family members and whether it would be harmful to sever those relationships
- Wishes of the child
- Duration of separation of parent from child
- Whether the child will enter into a more stable and permanent family relationship upon a TPR
Regardless of the reasons for a termination of parental rights proceeding, these cases are very emotional and difficult for the parties involved. The consequences of a termination of parental rights are significant, but not always negative. In most instances these cases are initiated for good reason. Still, it takes an emotional toll all the parties involved.
If you have questions or want to learn more about a TPR proceeding, call us today.